Arbitrator rules in favour of Ont. nurses fired for refusing COVID vaccines

A person draws out Moderna vaccine during a drive through COVID-19 vaccine clinic at St. Lawrence College in Kingston, Ontario, on Sunday January 2, 2022. (Lars Hagberg / The Canadian Press)

An arbitrator has ruled that nine Ontario nurses, who were fired because they didn’t get 2 COVID-19 vaccinations, should be reinstated, because their termination was “unreasonable.”

“Nurses intent on remaining unvaccinated are a small minority everywhere but their employee rights may not be ignored" wrote James Hayes, in his decision published March 1.

While he wrote that the initial vaccine mandate was “well motivated, driven as it was by genuine safety concerns,” Hayes decided that the nurses “should have been placed on unpaid leaves of absence,” which would have allowed them to return to their jobs if there were changes to the policy, or changes in their vaccination status. The terminations meant the RNs had a "misconduct" for lack of compliance making it difficult for them to get a new nursing job and because they were fired they would not be able to collect unemployment insurance or other support payments.

“I think it's an important decision,” said lawyer Howard Goldblatt, who represented the Ontario Nurses’ Association (ONA), which filed the case on behalf of the nine nurses fired from the eastern Ontario unit. He says it is the first arbitration case in Ontario involving staff unionized nurses that has advised hospitals to offer the RNs their jobs back. Compensation for the lost years of work, he wrote, would be discussed between the ONA and Quinte Health officials.

“I'm hoping that, to the extent that we can get these nurses back into the workplace, the doors will be open and they'll come back,” said Goldblatt. Quinte Health, according to its website, is currently looking for at least 59 nurses to fill positions. There are approximately 600 registered nurses at Quinte, according to the adjudication.

Quinte Health was one of an estimated 140 hospitals in the province that enacted vaccine mandates in the fall of 2021, requiring all staff to receive two COVID-19 shots. The nurses were terminated in 2022 because they hadn’t complied and did not have valid medical exemptions. One RN, says the ruling, was fired in April 2023 after returning from maternity/parental leave.

In a statement from Quinte Health, Catherine Walker, the manager of Communications and Community relations, wrote to CTV News:

"Like many Ontario hospitals, Quinte Health put in place a mandatory vaccine policy during the pandemic as a proactive measure to protect healthcare workers, prevent transmission, maintain healthcare capacity, promote public health, and fulfill our ethical obligation to prioritize patient safety and well-being. The decision …..concluded the impacted nurses should have been put on an unpaid leave of absence. Quinte Health respects the arbitrator’s ruling and will work with our ONA partners on next steps.”

The ONA did not respond to request from CTV News to comment on the decision.

“It takes years to train a nurse and to just jettison that experience and dedication... is not right,” said Raphael Gomez, director of the Centre for Industrial Relations and Human Relations at the University of Toronto after reviewing the decision. "These policies broke with established principles of bodily autonomy and informed consent,” he added.

The Quinte arbitration decision also noted that the health system developed many policies to protect against COVID infections. Some were "revoked relaxed or amended since their introduction,“ according to Hayes. However the requirement to have an "automatic termination” of staff who didn’t have two doses of the COVID vaccine has not changed, according to the document. Natural immunity among the nurses who had been infected with COVID-19 was also not taken into consideration. Nurses are also not mandated to have COVID-19 booster shots.

The Hayes decision referenced another health-care related vaccine mandate arbitration case at Lakeridge Health in 2023. It decided in favour of that institution’s policy to terminate non-compliant hospital staff. However, Hayes wrote that decision did not sway his report on the nurses at Quinte, because he focused on the legal requirement of employers to offer staff a viable option to losing their jobs, like unpaid leave.

Dr. Dale Kalina, an infectious disease physician in Oakville, Ont. who reviewed the ruling, says the mandates were introduced by hospitals trying to protect, staff and patients. He said the vaccines have been proven safe and effective in reducing disease severity hospitalizations and death. But he says the decision points out that existing staff should have been better accommodated. "You could think of virtual care, because there is not as high risk (of an) employment,” he said, adding the ruling states a balance is needed for existing staff. "I think it's important that people have a livelihood. But I also think that it's important that people are well set up and safe and protected enough in their jobs.”

The report also details how the Ontario Chief Medical Officer of Health, Dr. Kieran Moore, dropped the provincial vaccine mandates on March 9, 2022. But organizations like hospitals were allowed to choose to implement their own vaccination policies. Hospitals in Quebec, meanwhile, had dropped their vaccine mandates for nurses and other health-care workers in November 2021, almost 5 months earlier, with other provinces like Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland and Labrador and Yukon doing the same in the months that followed. Hospitals in Ontario and B.C. largely continue to maintain the mandates for new hires along with veteran staffers.

There are other legal cases questioning staff terminations because of vaccine mandates in Ontario, including another arbitration involving nurses terminated by Orillia Soldiers Memorial Hospital, in Orillia, Ont. Some believe the Quinte decision could set a precedent requiring hospitals to rehire fired staffers. “I do think the Quinte decision will impact other decisions in the future," said Goldblatt.

So too hopes veteran nurse, Lisa Wolfs.

She has not been able to practice nursing since her termination by London Health Sciences Centre in August of 2022, because of her hospital’s vaccine mandate. “I'm very happy that they've come to this conclusion because it disrupted and destroyed a lot of lives for health-care workers,” said Wolfs, who said her union, the ONA, is keeping members informed of additional cases challenging vaccine mandates for staff RNs.

Wolfs said she worked at the LHSC since 2006, most recently in the dialysis unit. After a maternity leave in 2020, she worked from January 2021 to September 2021 but left on stress leave, she says, because of the pressure to get vaccinated. She says she feared the vaccines might exacerbate her multiple sclerosis.

Her firing, after being cleared to return to work by her doctor, she says, caused her family financial hardship

Wolfs also says she tested positive for COVID-19 at least once during the pandemic. She says she is aware, meanwhile, that the hospital is very short nurses, which according to their job postings is actively recruiting nurses for 15 different departments.

“The magnitude of this (decision) is huge coming at a time where there's this ….unprecedented staffing crisis," said Scarlett Martyn, a paramedic and co-founder of the United Health Care Workers of Ontario, a group that she says represents some 3,200 health workers who lost their jobs or quit because of vaccine mandates. The majority, she told CTV News, are nurses who had to find other jobs. "Some worked in factories or menial jobs,” said Martyn.

Ontario hospital officials have maintained that only a “very small number” of health-care workers chose to be unvaccinated though exact numbers have never been detailed. However, Gomez says that the research he is preparing for publication suggests that a much higher number of nurses, up to 10 per cent, likely quit on their own or retired early because of the mandates.